The Explainer: Assault and bikery in the first degree

No malice here. This is just an inherent risk of racing. | Copyright Casey B. Gibson

Dear readers,
It’s time the Explainer got back in the saddle, after a steady three weeks of LUG-ing it up during the Giro d’Italia. I had a good time and I hope you did, too. What a spectacular race, with an unexpected outcome. Hats off to Ryder Hesjedal, the first Canadian grand tour winner in history. The Tour de France is going to be hard-pressed to match the excitement of the 2012 Giro. Of course, I’ll be watching either way.

Now, while much of our collective attention was turned to Italy, there were obviously other races going on in other parts of the world. Indeed, just a few hours after Taylor Phinney snagged the maglia rosa in the opening time trial at the Giro, riders were lining up in Anderson, South Carolina, for the Electric City Circuit, part of the 2012 USA CRITS Speed Week series.

What happened in that race remains the subject of dispute, but it did cause several of you to write in with questions regarding the consequences of what one famous television commentator might call mid-race “Argy Bargy.”

I’m including two letters from Explainer readers from the eight I received. I think these two are fairly representative of the others.
– Charles


Charles,
After hearing about Isaac Howe crashing during Speed Week’s Electric City Circuit on 5 May, I am curious about the legal complications that face Jonathan Atkins. Howe has accused Atkins of intentionally causing the crash. From the story I read, it seems that various accounts claim Atkins either grabbed Howe’s handlebar bar or struck it intentionally, causing a crash. Howe now has a broken collarbone.

If an investigation determines that Atkins intentionally caused an accident, how liable could be potentially be? In this situation, is there potential for criminal charges to be raised?

What options are available to Howe? Can he sue for damages associated with medical bills, lost wages, etc?

If an investigation concludes that this is a “racing incident” what are the options available to either rider?
Thanks,
– Bo


Dear Explainer,
I just got done reading about the accident at the Electric City Criterium and have to wonder how someone could be charged with a crime or end up getting sued by someone for a crash in a bike race.

Couldn’t you argue that a crash is a crash and crashes happen in racing? I sign a waiver every time I put my front wheel on the line. I know stuff happens and I expect it to. I sure as hell ain’t going to call the cops or a lawyer every darn time something happens.
– Dave


Dear Bo and Dave,
To start, the incident at Electric City hadn’t really caught my attention until I started getting emails about it. It is my understanding that the case remains under investigation, both by local police and by USA Cycling. Aside from briefly touching upon the competing description of the events that led to Isaac Howe’s crash and broken collarbone, I sure as heck am not going to offer my take on what happened.

Nonetheless, the incident does, despite what Dave suggests, raise a few interesting legal questions. Let’s start out with Dave’s assertion that Howe’s contact with the pavement was just part of the sport and something anyone who races should come to expect. Assume for a moment that the “accident” was the result of an intentional and malicious act. In that case, I think the tested legal principle of taurus stercoris might apply to your argument, Dave.

As you point out, everyone who has ever raced a bike in the U.S. – from local citizens’ racers to top professionals – is intimately familiar with the release form we sign before being allowed to toe the line. Some of us even read the darn things before we sign them. But what is it that you’re actually signing?

Well, it isn’t just a piece of paper acknowledging that “shit happens,” when you race. I’ve muddled through the topic before, but briefly signing a release only waives claims stemming from simple negligence on the part of the promoter and other participants.

Normally, we all owe what lawyers call “a duty of care,” to others. That means that during the course of your day-to-day activities, you really ought to be paying attention and not, for example, be staring at the girls on the sidewalk when you’re driving your car down the road. It also means that you may, as the promoter of an event, take steps to minimize risks to participants. But in bike racing, there are certain “inherent risks” involved in the sport, so we get the waiver. Without it – or, as is the case in states like my own – statutory protection, event organizers would be nuts to put on a race in which anyone risked an accident or injury.

What the release does not do is protect an organizer from gross negligence – like putting on a race over streets where one or more manhole covers have been removed. Nor does it protect anyone from intentional acts, such as those Jonathan Atkins stands accused of.

The question at issue in the Electric City matter is whose description of events is accurate. If, as Atkins says, he simply bumped Howe in the normal course of racing his bike, then that’s it. No one really has a claim, even if it could be argued that Atkins took a bad line and caused Howe’s crash through negligence.

Conversely, if Howe’s description of events turns out to be true, his advice to Atkins – “You better get a lawyer.” – is spot on. Howe claims that Atkins actually jerked him to the ground by reaching over and grabbing Howe’s wrist or handlebars.

Now, if that were true, it would satisfy the “intent element” of an actual crime and would open a whole new can of worms for Mr. Atkins.

Firstly, if law enforcement finds that Mr. Atkins actually carried out the act of grabbing Mr. Howe’s wrist or bars and “jerking him to the ground,” the case would end up in the hands of local prosecutors. It’s there they make the call as to which part of the criminal code was violated. Than can make the difference between a misdemeanor assault charge or a far more serious felony, aggravated assault. In South Carolina, the statute uses the terms “assault” and “battery” interchangeably, so I will as well.

If they go for the felony, he could be charged with “assault and battery of a high and aggravated nature,” a violation of §16 3 600(B) of the South Carolina Code of Laws. That violation carries a maximum sentence of 20 years in prison, but there would be a serious hurdle for a prosecutor to overcome, given that a collarbone break may not meet the “great bodily injury” standard. A more likely felony charge would be a violation of §16 3 600(C), first degree assault and battery, where the prosecutor simply has to show that the victim was injured or that the assault was carried out in way “likely to produce death or great bodily injury.” Odds are pretty good that one could make a case for that. Again, there is an intent element to this crime, meaning that the defendant had to intend to perform that act of assault. If prosecutors are unable to show beyond a reasonable doubt that Mr. Atkins intended to grab Mr. Howe or his bike, he will not be convicted.

Even if Mr. Atkins is cleared of a criminal charge, that doesn’t mean that he is home free. No, he cannot be successfully sued for simple negligence in a case resulting in an accident during a bike race. It would even be hard to prove gross negligence or even recklessness. The key here again would be proving intent. Proving that, though, is easier in Civil Court than it is in Criminal Court. At least the standard of proof is lower in Civil Court than it is in Criminal Court. Remember that the standard in American Criminal Courts is “beyond a reasonable doubt,” the highest standard of proof in the judicial system. That’s rather formidable.

In most civil actions, the Court applies a “preponderance of the evidence” standard, meaning that there should be a greater than 50 percent chance that the allegation is true. That could be huge when it comes to eyewitness testimony, even if it is impeached by the defense.

Damages? If I were representing somebody in a case involving a claim against someone who intentionally caused an injury and I could prove it, I would go for the standard medical costs, loss of income, pain and suffering and, as a kicker, try for punitive damages as well.

Again, I am not saying that Mr. Atkins did – or didn’t – do what Mr. Howe accuses him of doing. I am saying, however, that anyone shown to have intentionally caused an accident during a race by reaching out and jerking someone to the ground is guilty of more than simple negligence. He’s guilty of both criminal assault and liable for the civil consequences that would stem from that act as well. In simple terms, he’s a jerk and, like the man said, he “better get a lawyer.”
— Charles

The Explainer is a weekly feature on Red Kite Prayer. If you have a question related to the sport of cycling, doping or the legal issues faced by cyclists of all stripes, feel free to send it directly to The Explainer at Charles@Pelkey.com. PLEASE NOTE: Understand that reading the information contained here does not mean you have established an attorney-client relationship with attorney Charles Pelkey. Readers of this column should not act upon any information contained therein without first seeking the advice of qualified legal counsel licensed to practice in your jurisdiction.

Follow me on Twitter: @Charles_Pelkey

,

10 comments

  1. Jesus from Cancun

    How nice is to see the Explainer back. Those 3 weeks talking about things in Denmark and Italy absorbed all my available internet time. I hadn’t heard about this crash either, until now.

    I only remember seeing such a thing once in my life. If memory doesn’t fail, it was in 1981 or 82 in a Vuelta Mexico. I was watching the last stage circuit from the grandstands, and a Cuban racer reached out to pull someone else’s brake cables and sent him to the ground along with many others. I can’t remember exactly, but the peloton was moving at a very fast pace and there were some ugly injuries.

    This happened as the bell rang for the last lap. The offending rider finished the stage, but was disqualified after several riders went to the judges and pointed their fingers at him.

    I don’t remember anyone ever talking about criminal charges. It was in a race, and I believe that everyone at the time agreed that what happens in racing stays in racing.

    What I know for sure is that this guy had his license revoked and never raced again, at least in sanctioned events. I can’t remember his name, but he was still talked about when I spent some time training and racing in Cuba in ’93.

    I don’t know, I am used to a different way of thinking. I know that going to court might seem necessary to some people. I work with visitors from the US and I talk with hundreds of them a year. From what I hear, it seems like lawyers must be especially busy over there. It is a whole different context and I can see why someone would take a bike racing incident to court over there.

    It’s probably not fair for me to say because it wasn’t the guy in the ground with a broken bone. I just don’t think I would have ever thought about taking someone to court for something that happened in a race, and I don’t remember it happening ever in international bike racing. Or any other international sport. Is there a precedent, or is this the first time it would happen? Would this open the door for a new kind of liability insurance and more racers looking for someone to blame for their injuries and resulting losses?

    Times are a’changing…

  2. Drew

    I understand that there are some incidences on the hockey rink that have led to criminal charges. With all of the fighting in hockey I would imagine it’s even harder to argue the “it’s a part of racing” thing in that case.

    Just today we were talking about a semi-local crit two years ago where I rider recklessly took out most of the field in the last corner and was later relegated for a year, or something similar?

  3. scaredskinnydog

    My question is where does provacation fit into the equation? Did the “victim” do or say anything prior to the incident to provoke the alleged intentional crash? It seems to me that a little respect towards fellow racers (regardless of age,gender or category) goes a long way towards avoiding these kinds of unfortunate situations. I still occasionally race bmx and while crashes are commonplace and sometimes unpleasantries are exchanged there is a overall level of respect between riders that kinda self-police’s the field. In my opinion todays roadie’s could benefit from the “old school” code of honor.

  4. Kevin

    Hearing about this crash made me think of the incident up at T-town several years ago that ended with the “Lakatosh Handshake.” From what I remember, the instigating rider in that instance got a 6 month suspension but there were no criminal or civil charges filed. Of course, the officials’ job was a bit easier in that case since there was video footage of what happened.

  5. Alex TC

    Every racer knows he can “defend” himself by staying at the front of the peloton, where the physical, tactical and technical level is usually higher. Yes it´s aggressive and tense all the same but it does present an advantage nonetheless. Racing involves risks, OK we all accept that and everything that comes with it – EXCEPT unfair play.

    What can we do against some jerks that play unfair and cause damage intentionaly? I understand someone taking a case to the court, not only to seek some form of compensation but also to somehow “purify” the competition by cleaning – or at least inhibiting – such acts. I´m not saying that was the case, but we all know it happens. Justice also works by setting example and whatever the outcome, it could make someone think twice before racing dirty.

  6. Bikelink

    +1 to other posters asserting that a) sure crashes and injuries happen, and even when due to ignorance/poor biking by others, are part of racing, but b) intentionally causing a crash/injury is beyond the pale and should be punished. Drew commented about other sports like hockey which I’m not very familiar with. However, even if bare knuckle brawling and “checks” leading to concussions are common/accepted, it would be criminal if one players coasted up behind another and speared him in the back of the neck with the butt of his stick, paralyzing him. There are risks that people take in cycling and even fighting/more violent sports, but intentional harm outside of the realm of the normal activity (in our case, pulling one into a crash by the handlebars) is not only not part of the sport and reprehensible, but should be criminal and subject to assault type laws. Think of the opposite…if pulling someone to the ground by the handlebars only lead to cycling sanctions like brief suspensions (and thus perhaps became more common), would any of us sane folks still race?

  7. Miguel

    Claude Criquelion took Steve Bauer to court when he went down in the sprint finish in the ’88 World Championships road race. He claimed that Bauer ran him into the barriers. I can see that racing is racing but when someone clearly does something intentional, a rider should take legal action. Otherwise, it sends a message to all that this extreme behavior is acceptable. I’m talking about when it’s intentional and can result in extreme injury. If all it causes is a lost placing, then ok. File it with the commissaire or race judges and have the rider disqualified but, if it results in personal injury, sure, take legal action. What if it causes death?

  8. Georgia Boy

    I was at the race that day and raced the Masters 35+ that happened earlier in the day. I did not see the incident reported, but I can speak about the location of the crash. After the start/finish there was a 200 meter downhill that then hit a 90 degree left turn onto a very narrow 6 ft wide path. The wind was a significant crosswind once you hit this path. On both sides were grass, but the outside had a 6 inch drop off. Several times in my race the wind pushed myself and other racers off the outside. Just a bump from someone unexpected could have made all the difference between managing the bike back on course and crashing hard. Just trying to give an accurate understanding of the course.

  9. UnPirataOra

    Like Georgia Boy, I was at Electric City that day. I raced the 2/3 – my girlfriend that ladies’ pro – and we pitted next to Atkins. Needless to say, after talking to him for hours, we were shocked to read this story when it hit VeloNews.

    Obviously, my beliefs about what transpired are a little colored based on my experience with Atkins, who couldn’t have been nicer.

    Goergia Boy is right about the turn: the combination of the road layout and the strong wind guttered riders immediately upon exiting. There was one line, and everything else was in the wind.

    What concerns me about this incident – aside from the purported conduct of both racers – is the variability of accounts. I’ve read that Howe initially stated he didn’t have a precise recollection of the incident, and noted inconsistencies between times the story has been told. Some can probably be attributed to media drift, as reporters each have their own unique way of quoting people. But if Howe really doesn’t remember and has publically given different accuonts of what happened, is his testimony compromised? I’m also curious as to the “eyewitness” accounts given, most of which note that they didn’t actually see the contact.

    As noted above, Howe does admit to having escalated the situation with inflammatory conversation. How does that affect legal proceedings, if at all?

    Regardless of my impressions of Atkins, the story is incredibly disappointing. Regardless of what actually happened in the critical moments, neither rider displayed conduct becoming of a sportsman.

    At Electric City the women had very nearly had their own explosion when one of them reached out and pushed another woman off line during the last lap. Cooler heads prevailed and several of them immediately visited the officials post race to lodge a formal protest. As we were packing to leave, an annoucement could be heard over the PA system for a representative of the accused team to visit the official’s tent. USA Cycling puts staff at these events for more than just timing, scoring, and firing start guns: Atkins should have put his grievance on file.

  10. Pingback: The Explainer: Prayers for “The Deuce” : Red Kite Prayer

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>